1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 1 of 9 PagelD #: 1094
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 1 of 9 PageID #: 1094
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`3 D'STRICT COURT
`_T OF DELAWARE
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ARBUTUS BIOPHARMA
`CORPORATION AND GENEVANT
`SCIENCES GMBH,
`
`)Case No.: 22-cv-00252-MSG
`)
`)
`Plaintiffs,)
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`V.
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`MOTION TO INTERVENE
`
`PROPOSED CLASS ACTION
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`MODERNA,INC. and MODERNATX,
`INC.
`
`Defendants.
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`EMANUEL MCCRAY,OnBehalfof
`Himselfand All Others Similarly Situated,
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`Intervenors-Plaintiffs.Neeeeee
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`Emanuel McCray (“McCray”), Proposed Intervenor, respectfully moves to
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`intervene in this action on behalf of himself and all other citizens of the United
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`States similarly situated, as a class, pursuant to Rule 24 of the Federal Rules of Civil
`
`Procedure (Fed. R. Civ. P.), our sovereign powers reserved to the People in the
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`|
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`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 1 of 9 PageID #: 1094
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`3 D'STRICT COURT
`_T OF DELAWARE
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ARBUTUS BIOPHARMA
`CORPORATION AND GENEVANT
`SCIENCES GMBH,
`
`)Case No.: 22-cv-00252-MSG
`)
`)
`Plaintiffs,)
`
`V.
`
`MOTION TO INTERVENE
`
`PROPOSED CLASS ACTION
`
`MODERNA,INC. and MODERNATX,
`INC.
`
`Defendants.
`
`EMANUEL MCCRAY,OnBehalfof
`Himselfand All Others Similarly Situated,
`
`Intervenors-Plaintiffs.Neeeeee
`
`Emanuel McCray (“McCray”), Proposed Intervenor, respectfully moves to
`
`intervene in this action on behalf of himself and all other citizens of the United
`
`States similarly situated, as a class, pursuant to Rule 24 of the Federal Rules of Civil
`
`Procedure (Fed. R. Civ. P.), our sovereign powers reserved to the People in the
`
`|
`
`
`
`Cage 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 2 of 9 PagelD #: 1095
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 2 of 9 PageID #: 1095
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`Tenth Amendment, and our poweras a group acting as a class pursuant to Bondv.
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`United States, 572 U.S. 844, 853 (2014),! and Califano v. Yamasaki, 442 U.S. 682,
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`700, (1979).?
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`This Motion is supported by the attached Memorandum of Law. A Proposed
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`Complaint for declaratory relief as the pleading required under Rule 24
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`accompanies this Motion To Intervene.
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`For the reasonsset forth in the attached Complaint, intervention is warranted
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`as of right or permission because Intervenor McCray was born in the United States
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`and the proposed class members were either born or naturalized in the United
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`States, were subjected to the claimed “pandemic”; the measures to control the
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`pandemic; and the vaccines produced by the Defendants were for McCray and the
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`other putative class members.
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`’ Holding that: “‘An individual may ‘assert injury from governmental action taken in excess of the authority
`that federalism defines.””
`? Holding that“class relief is appropriate in civil actions brought in federal court, including those seeking to
`overturn determinations of the departments of the Executive Branch of the Government in cases where judicial review
`of such determinationsis authorized.... Indeed, a wide variety of federal jurisdictional provisions speak in terms of
`individual plaintiffs, but class relief has never been thought to be unavailable under them.”
`
`2
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`
`
`Cage
`1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 3 of 9 PagelD #: 1096
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 3 of 9 PageID #: 1096
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`—
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`4
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`MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE
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`I,
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`Legal Standard.
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`The proposed Intervenors-Plaintiffs seek intervention (i) as ofright or (ii)
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`5||permissively, solely to challenge Moderna’s attemptto shift liability forits
`
`“Prototype Pathogen” vaccines to the United States, which would violate the
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`g||sovereignty of the United States and the individual sovereignty of the People
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`9||reserved in the Tenth Amendment.
`
`10
`
`Whatdistinguishes intervention from other methods of adding new partiesis
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`12.||that it requires action by an outside party whoseeksa seatat the table. See 7C
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`13||Charles Alan Wright et al., Federal Practice and Procedure § 1901, at 257-60 (3d
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`ed. 2007).
`
`The Third Circuit has held that:
`
`“[A]litigant seeking intervention as of right under Rule 24(a)(2) must
`establish 1) a timely application for leave to intervene, 2) a sufficient
`interest in the underlyinglitigation, 3) a threat that the interest will be
`impaired or affected by the disposition of the underlying action, and 4)
`that the existing parties to the action do not adequately represent the
`prospective intervenor’s interests. Liberty Mut. Ins. Co. v. Treesdale,
`Inc., 419 F.3d 216, 220 (3d Cir. 2005)(citing Kleissler v. United States
`Forest Service, 157 F.3d 964, 969 (3d Cir. 1998)). ‘Each of these
`requirements must be metto intervene as ofright.’” 419 F.3d at 220
`(citing Mountain Top Condominium Assoc. v. Dave Stabbert Master
`Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995).
`
`15
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`16
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`17
`18
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`19
`20
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`21
`22
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`23
`24
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`25
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`26
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`27
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`28
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`
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`Caffe 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 4 of 9 PagelD #: 1097
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 4 of 9 PageID #: 1097
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`Il.
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`The Third Circuit’s Requirements for Intervention Have Been Met.
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`This Motion to Intervene is timely. The Plaintiffs’ Complaint was filed on
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`February 28, 2022 (Doc. 1).
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`On November2, 2022, (Doc. 32), Judge Goldberg denied Moderna’s motion
`
`to dismiss and directed that: “Within fourteen (14) days from the date of this Order,
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`Defendants shall file an answer to the Complaint.”
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`On November30, 2022, Moderna filed an Answerto Plaintiffs’ Complaint,
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`which was accompaniedby a counterclaim against the Plaintiffs (Doc. 35).
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`On December21, 2022, Plaintiffs filed an Answer to Defendants’
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`counterclaim (DOC. 38). On February 14, 2023, the United States filed a Statement
`
`of Interest (Doc. 49). On February 16, 2023, Judge Goldberg filed an Order
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`directing that: “Within fourteen (14) days from the date of this Order, the parties
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`and the U.S. Governmentshall submit a letter of no more than ten pages regarding
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`the impact of the Governments Statement of Interest on the scheduling of this
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`matter.” (Doc. 51).
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`Asofthe date of this Motion, February 26, 2023, the United States and the
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`existing parties have not filed the letters mandated by Judge Goldberg on February
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`16, 2023. Thus, timeliness required by the Third Circuit has been met.
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`Asstated supra and infra, and in the attached Intervenors’ Complaint,
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`Intervenors havea significant interest in the underlyinglitigation. Whether Moderna
`
`
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`Cage 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 5 of 9 PagelD #: 1098
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 5 of 9 PageID #: 1098
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`—OooonNDHvAS&SWWW
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`can shift its liability for vaccines based on a “prototype pathogen”that required
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`infringementofPlaintiffs’ patents, is similar enough to the same concern of the
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`Plaintiffs and the declaratory relief Intervenors seek.
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`Asthe sole recipients/targets for Moderna’s COVID-19 vaccines, each citizen
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`of the United States, pursuant to the “powers” reserved under the Tenth
`
`Amendment, would be the primary and sole enforcer of Moderna’s productliability
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`for its COVID-19 vaccines.
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`Moreover, the course ofthis litigation, which has been abruptly changed with
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`Moderna’s counterclaim and the statementof interest by the United States,
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`significantly demonstrates the existing parties represent only their interests.
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`Thus, a threat is created that the interests of the Intervenors will be impaired
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`or affected by the disposition of the underlying action, particularly should the
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`disposition fail to deny Moderna’s unlawful attemptto shift liability to the United
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`States. See Liberty Mut. Ins., 419 F.3d at 220. Moreover, furtherlitigation is on hold
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`pendingletters regarding the “scheduling of this matter.” (Doc. 51).
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`Ill. Article ITI Standing To Intervene.
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`To have standing to sue as a class representative it is essential that a party
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`must be a part of that class, that is, he must possess the sameinterest and suffer the
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`same injury shared by all members ofthe class he represents. To state differently,
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`proposed Intervenors’ interest must be “undifferentiated” from that of all other
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`
`
`Caffe 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 6 of 9 PagelD #: 1099
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 6 of 9 PageID #: 1099
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`—
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`2
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`residents of the United States. Schlesinger v. Reservists to Stop the War, 418 U.S.
`
`208, 216 (1974). See also Town of Chester v. Laroe Estates, Inc., 1378. Ct. 1645,
`
`3 4|
`
`|1650 (2017) (“Article III of the Constitution limits the exercise of the judicial power
`
`>||to ‘Cases’ and ‘Controversies.’” (Citation omitted).
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`The concrete injury here asserted has been alleged in Plaintiff's Complaint:
`
`“Moderna brought its vaccine from lab bench to arms in record speed.
`That unprecedented accomplishment was madepossible by Moderna’s
`use of breakthrough technology Arbutus had already created and
`patented—a revolutionary lipid nanoparticle (“LNP”) delivery platform
`that took the scientists of Arbutus years of painstaking work to develop
`and refine. Moderna was well aware of Arbutus’s LNP patents and
`licensed them for other product programs,but it chose notto do so for
`its COVID-19 vaccine.” Jd. J 1.
`
`“Without adequate protection, mRNA quickly degrades in the body.
`For mRNAvaccines like Moderna’s to work, they must incorporate a
`mechanism for protecting the fragile mRNA,delivering it through cell
`membranes, and then releasing it inside the cell. In the words of one
`Nobel Prize winningscientist, the secret for making RNA-based
`products work has always been “delivery, delivery, delivery. Jd. § 3.
`
`6
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`7 8
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`9
`10
`
`ie
`12
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`13
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`14
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`15
`16
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`17
`18
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`Moderna’s alleged patent infringements; Moderna’s highly volatile COVID-
`19
`29||19 vaccines; Moderna’s counterclaim and the United States’ Statement of Interest
`
`seeking to transfer liability to the United States, combineto significantly complicate
`
`21
`
`22
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`the chain of product and Governmenttort liability associated with the Federal class
`33
`24||tort claimsfiled by putative class members Jerzy Gruca (“Gruca”), HHS
`
`25||Administrative Tort Claim No. 2021-0064; Emanuel McCray, HHS Administrative
`
`
`
`Cale 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 7 of 9 PagelD #: 1100
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 7 of 9 PageID #: 1100
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`wa&WwHN—
`oOoSoNDS
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`Tort Claim No. 2020-1415,° and others, for the case Marta Reyes,et al. v. Republic
`
`ofChina, et al., Class Action No. 20-cv-21108-AMCin the U.S. District Court for
`
`the Southern District of Florida (Miami), filed on March 12, 2020.
`
`The Miamiclass action is currently on administrative hold to allow the
`
`Plaintiffs time to “Continue Service of Process Pursuant To The FSIA”against the
`
`Peoples Republic of China, et al. and to amend the Complaint by “expand[ing] the
`
`factual allegations of how the pandemic unfolded and how agents and actors of
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`Defendants committed wrongful acts within the United States...since the research
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`for the April 15" [2021] brief does appear to lead to additional U.S. based
`
`defendants who acted on behalf of or in aid of China to further the pandemic....” Jd.
`
`{7 6-9.
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`Anyshift of patent infringementliability from Moderna to the United States
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`would arguably affect the class action tort claims filed against the United States and
`
`the allegations of how CCPactors and agents within the United States conducted
`
`themselves and furthered the pandemic, including Moderna’s infringement of
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`Plaintiffs’ patents and the safety and efficacy of Defendants’ vaccinesthat are
`
`delivered by Plaintiffs’ vaccine delivery vehicles.
`
`3 See Exhibit 3 to Intervenors’ Complaint (Letter from Department of Health and HumanServices).
`
`7
`
`
`
`Cate 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 8 of 9 PagelD #: 1101
`Case 1:22-cv-00252-MSG Document 60 Filed 03/02/23 Page 8 of 9 PageID #: 1101
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`moS&SKNDRASeWwNY
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`13
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`IV.
`
`Permissive Intervention.
`
`The proposedIntervenorsalso satisfy the requirements for permissive
`
`intervention, which is governed by the provisions of Fed. R. Civ. P. Rule 24(b).
`
`Proposed Intervenors can assert both factual and legal questions directly
`
`related to the main action, Defendants’ counterclaim, and the United States’
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`statementofinterest.
`
`The proposed Intervenors simply seek to protect our “health and well-being”
`
`and ourindividual sovereignty. Intervention will significantly contribute to the just
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`and equitable adjudication of the legal questions thus presented.
`
`VII. CONCLUSION.
`
`For the reasons set forth above, the proposed Intervenors-Plaintiffs
`
`respectfully request that the Court grant their motion to interveneas of right, or, in
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`the alternative, allow the Proposed Intervenors-Plaintiffs to intervene permissively.
`
`Respectfully submitted this 26" day of February 2023.
`
`Emanuel McCray
`
`a
`
`2700 Caples Street
`P.O. Box 3134
`Vancouver, WA 98668
`(564) 208-7576
`emanuel.mccray@hotmail.com
`
`
`
`
`
`
`|
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`Fac 6118918
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`02/26/23 %
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`EMANUEL MCCRAY
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`PO BOX 3134
`VANCOUVER WA 98668-3134
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`EXPECTED DELIVERY DAY: 03/02/23
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`US DISTRICT COURT
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`WILMINGTON DE 19801-3519
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`2700 Caples Street
`P.O. Box 3134
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`usDISTRCT COURT |
`|DISTRICTOF DELAWARE |
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`TO:
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`OFFICE OF THE CLERK
`United States District Court
`i 844 North King Street Unit 18 .
`Wilmington, DE 19801-3570 _
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`
`
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